Following an application by employer bodies, supported by the Australian Services Union, on 28 March 2020, the Full Bench of the Fair Work Commission made a determination that the Clerks – Private Sector – Award will be modified to take into account the impact of the COVID-19 pandemic.

The changes add a new Schedule to the Award and are designed to allow employers and employees to have more flexibility in relation to working hours, so that they can manage their working and home commitments. The changes also provide different ways for employees to use annual leave, which previously were not permitted.

The key changes are:

1. Upon request by an employee and with agreement by an employer, whilst working at home, an employee can change the span of their ordinary working hours to fit within the period of 6 am to 11 pm, Monday to Friday, and 7 am to 12:30 pm on Saturday.
2. Whilst an employee is working from home, an employer now has the option to reduce the minimum shifts for part-time and casual employees to two consecutive hours.
3. With the agreement of the employer, an employee can now take annual leave at half pay, which means that they can take longer periods of leave. For example, if an employee has two weeks annual leave accrued, they can extend their annual leave to four weeks, at half pay.
4. If an employer is experiencing financial difficulties, so that they can remain viable, an employer is able to reduce the hours of work of employees by no more than 25%. In order to do this, an employer must have the agreement of 75% of employees and, if there is a union representing employees, then the employer must consult with that union prior to putting this option to a vote of employees.
5. Employees are able to obtain other work with other employers to provide them with extra income during this time whilst they retain their current employment. An employer cannot unreasonable refuse a request by an employee to work for another employer.

These changes are in place until 30 June 2020, but this period of operation can be extended on application to the Commission.

Employees are also able to request training, professional development and/or study leave if their hours have been reduced, so this might provide an opportunity for employees to learn new skills or develop their existing skills during this time.

When conducting a vote in relation to a reduction in hours, the employer must notify the Fair Work Commission that the employer proposes to conduct a vote and provide the work email addresses of the employees who will be participating in the vote to the Commission.

The Commission will then distribute an information sheet prepared by the Australian Services Union dealing with COVID-19, prior to the vote. The vote shall not take place until at least 24 hours after the requirements set out above have been met.

The changes also include a close-down provision so that an employer may require an employee to take annual leave as part of a close down of its operations, or part of its operations by giving at least one week’s notice or any shorter period of notice that may be agreed.

If the employee does not have sufficient accrued leave then the employer must give them unpaid leave to cover the period of the close down.

Where an employee is placed on unpaid leave, the period of unpaid leave will count as service for the purposes of relevant award and NES entitlements.

This determination came into effect on 28 March 2020, but it will not become operational until the first full pay period after 28 March 2020.

Similar changes are currently before or have been made by the Commission for other Awards including the Restaurant Industry

If you have any questions in relation to these changes or any other matters concerning the impact of COVID-19 on business, please do not hesitate to contact one of our team so that we can provide whatever assistance you may need.

You can read the Determination via this link:

https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/pr717900.pdf

Workplace Relations team –

Audrey Mills – +61 3 6210 0057 –
Ekaterina Skalidis – +61 3 6210 0057 –
Craig Green – +61 3 6210 0043 –
Kaela Williams – +61 3 6210 0016 –